The
risk of being intentionally hit in the head by a pitch is inherent in the game
of baseball and is assumed by players of the sport at the community college
level, the state Supreme Court ruled yesterday.

The
6-1 decision provoked a sharp dissent from Justice Joyce L. Kennard, who said
her colleagues had reached a “startling conclusion.”

Quoting
from an official comment to Major League Baseball’s rule against throwing
pitches at a batter’s head, the dissenting justice commented:

“It
is contrary to the official view in the sport that such conduct ‘should be ñ
and is ñ condemned by everybody.’”

But
Justice Kathryn M. Werdegar, writing for the majority, said pitches
intentionally thrown at hitters are an “inherent risk of the sport, so accepted
by custom that a pitch intentionally thrown at a batter has its own
terminology: ‘brushback,’ ‘beanball,’ ‘chin music.’”

She
added:

“For
better or worse, being intentionally thrown at is a fundamental part and
inherent risk of the sport of baseball. It is not the function of tort law to
police such conduct.”

The
court’s ruling reversed a 2003 decision by a divided panel of Div. Five of this
district’s Court of Appeal, which had allowed the suit filed by Jose Luis Avila
against CitrusCommunity College
to go forward.

Helmet
Broken

Avila,
playing for RioHondoCommunity College,
was struck by a pitch that broke his batting helmet. He claimed the pitch was
in retaliation for one that struck a Citrus player.

The
Associated Press reported yesterday that Avila,
who was 19 at the time of the incident in 2001, now suffers from sporadic
seizures.

Werdegar
said the intermediate appellate court was correct in concluding that Citrus was
not immune from suit under Government Code Sec. 831.7, which provides that
“[n]either a public entity nor a public employee is liable to any person who
participates in a hazardous recreational activity...for any damage or injury to
property or persons arising out of that hazardous recreational activity.”

That
section does not apply to supervised school sports, the high court justice
said.

No
Duty

But
she said Citrus owed no duty to Avila
to protect him against the risks inherent in playing baseball. Avila,
she explained, could not demonstrate that the school did anything to “enhance”
that risk.

Quoting
language from Knight v. Jewett
(1992) 3 Cal.4th 296, Werdegar said tort liability can attach only to conduct
“totally outside the range of the ordinary activity involved in the sport,”
such as throwing a ball at a batter waiting for his turn at bat.

“The
District owed no duty to Avila
to prevent the CitrusCollege
pitcher from hitting batters, even intentionally,” she declared. “Consequently,
the doctrine of primary assumption of the risk bars any claim predicated on the
allegation that the CitrusCollege
pitcher negligently or intentionally threw at Avila.”

Nor,
she reasoned, did the school owe Avila
any duty to be sure he received proper medical care after his injury. She noted
that Rio Hondo had its own coaches and trainers at the game.

Werdegar
rejected Kennard’s suggestion that Avila
should have been permitted to amend his complaint to add a battery allegation.
Such an amendment, she argued, would have been “futile.”

She
reasoned:

“[T]he
baseball player who steps to the plate consents to the possibility the opposing
pitcher may throw near or at him. The complaint establishes Avila
voluntarily participated in the baseball game; as such, his consent would bar
any battery claim as a matter of law.”

Kennard
said she agreed with the majority that Citrus was not entitled to immunity
under Sec. 831.7, but not with its conclusion on the issue of duty.

The
“legal rule that there is no duty to avoid risks ‘inherent’ in a recreational
sport” entered California law with the plurality opinion in Knight and was “later embraced by a
majority of this court in Kahn v. East Side
Union High School Dist. (2003) 31 Cal.4th 990,” Kennard said.

“Unlike
good wine, this rule has not improved with age,” she commented.

“I
have repeatedly voiced my disagreement with this court’s adoption of that rule,
which is ‘tearing at the fabric of tort law.’”

The
task of determining what risks inhere in a given sport is “amorphous and
fact-intensive,” and not one that trial courts can hope to accomplish at the
demurrer or summary judgment stage, she argued.

“[T]his
case illustrates,” she asserted, “that the no-duty-for-sports rule is
unworkable and unfair.”

The
case is Avila v. Citrus Community College
District, 06 S.O.S. 1756.